Juveniles and the Law

More young people than ever are being sent to court and sometimes prison - is there a better solution?

By Jeff Woodburn

A little more than a century ago, legal scholars drew a line that divided juvenile and adult offenders. The law looked at minors differently because they lacked the "vicious will" that presumably took time to cement into a soul. Then Juvenile Law rested on rehabilitation, operated under a veil of privacy and extended some mercy and a lot of hope.

Today it seems much of that sympathy has run out and the line between adults and children has blurred - or as some argue, moved. More and more young people are being charged as adults and sent to prison for long terms, intervention services are being slashed, and police and prosecutors are left with their hands tied as a growing number of elementary and middle school students are being hauled off to court.

In Portsmouth three middle school students were caught in a criminal triangle where one created a mobile phone video of the other two engaged in a sexual act. Without a sexting law the police are forced to bring three felony charges of child pornography against the 14-year-old who captured the images and passed them among a few friends. Portsmouth Police Captain Corey MacDonald, who is also an attorney, told the Union Leader that his department faced an unpleasant dilemma with no other options. "The emphasis," he stressed is "on getting rehabilitated, no[t] jail time."

Others, like Anna Elbroch, a private practice attorney from Portsmouth who represents minors on behalf of the state, are blunter: "There is no reason this child should be in court, [but] of course the child needs help."

The problem is that law enforcement lacks the flexibility it once had under CHINS, the Children in Need of Services program, a legal proceeding that targeted intervention services to minors heading for trouble for things like truancy, unruly behavior at home and school. The goal was to change behaviors both in the child but also at home before they escalated to the level of a juvenile delinquency petition.

New Hampshire's juvenile laws are administered through the Family Court and consist of three parts - CHINS; juvenile delinquency, which handles cases involving minors under 17 who commit a felony or misdemeanor; and abuse and neglect, which is responsible for assuring parental care meets a minimal level of safety and under rare circumstances removes children from their parental home.

Two years ago the CHINS' budget was cut by nearly half and its eligible service population was narrowed to include about 50 children, down from 1,000 previously. That means 950 or 99.5 percent of the once-eligible minors are not receiving services. Now to qualify for the CHINS program a youth must have a severe cognitive, emotional or mental health disorder, engage in activity that poses a danger to others and must be ineligible to receive services under abuse or delinquency statutes.

Social workers, school officials, police and lawyers involved in the Juvenile Court bemoan the shift away from using problem-solving services and toward a system that bumps minor offenders up to courts designed for more serious offenders. "It's like using a wrench instead of a hammer to drive a nail," says retired Family Court Judge James Mihalik, who now runs the Gorham-based Family Resource Center, adding that it's not the right place for children and it doesn't save the state money. He notes that juvenile delinquency proceedings are more punitive and more expensive as it requires legal representation for all parties and if placement is required this too is very costly.

More than anything else it delays intervention and allows problems to fester and grow worse. Many of these cases grow out of dysfunctional homes with substance abuse, mental illness or just poor parenting. These children, Elbroch says, "are created by their environment and experience. They're not just bad seeds."

Portsmouth Police Detective Rebecca Hester, who handles many of the city's juvenile cases, says without CHINS "we can't enforce" the state's compulsory school attendance law requiring students to go to school until they turn 18. Truancy typically is a red flag, she says. Hester pointed to a "young man who hasn't been to school since January [but] there is nothing we can do." She says the young man is "in a bad place" and it's a "symptom of an issue."

Many of these problems are ticking time bombs. Eventually they blow up or overburdened schools and police departments become tired of continuous run-ins and, as a last resort, a juvenile delinquency petition is filed. The goal may be to obtain services or to simply keep the peace at home or school.

Attorney Donna Esposito, a public defender in Manchester who specializes in juvenile cases, has seen an increase in younger children - as young as 9 or 10 - being prosecuted for "very minor things" like shoplifting and disorderly conduct. The hope, she says, is to "get kids services" including mental health, substance abuse and behavioral intervention.

Bringing charges is "the primary gateway for children and families to get social services," says Gerald Zelin, a Portsmouth attorney who represents school districts on such matters. "To get social services you have to go to court."

But with that comes a record. Even if the services turn a troubled kid around, a criminal record or reputation could remain. These blemishes can affect their ability to get college financial aid, obtain a job or even an apartment. Even though the law shields criminal records of minors who are less than 17 years old, observers say many don't fully understand the law and disclose their legal indiscretions.

Busy law enforcement officers like Detective Hester, who is on the case of the three Portsmouth middle school students caught up in the sex video criminal investigation, don't have time to ponder the "vicious will" of the young people they regularly deal with. But she does mention a historic truth: "Adolescents only see to the end of their nose. They don't see the implications." NH

This article appears in the November 2012 issue of New Hampshire Magazine